ALJDEC

97F-2695-ROC · Registrar of Contractors · 1997-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 30, 1997. APPEARANCES: Complainant appeared personally. Respondent appeared through its Sales Manager, Mike Hennesey. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusion of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant purchased his lot and house from Respondent. 2. Complainant was the second purchaser in Respondent’s subdivision. Except for the first lot sold, Complainant had his choice of lot selection. 3. Prior to the construction of Complainant’s house, there was an existing telephone pedestal located on an eight foot public utility easement. The easement is located on the west side of Complainant’s lot near the front sidewalk. 4. Complainant purchased an optional two-door recreational vehicle gate from Respondent. The gate, measuring 9’ 4’’ in total length, was installed on the west side of Complainant’s lot between his garage and a block wall on the property line with his western neighbor. 5. Complainant purchased the optional gate because he intended to buy a boat and trailer and store them on his property behind the gate. Respondent was aware of Complainant’s intended use for the gate, although there is no evidence that Complainant ever informed Respondent of any boat and trailer dimensions. 6. Complainant cannot fully access his side yard behind the gate with his new 21’ ski boat and trailer because the location of the telephone pedestal adversely affects his ability to maneuver the trailer through the gate with his tow vehicle . 7. The evidence of record is adequate to establish that Complainant’s boat and trailer narrowly fits the opening created by the gate. 8. The existing telephone pedestal can be relocated on the utility easement to permit Complainant unrestricted access to his gate for his tow vehicle with hitched boat and trailer. However, the telephone utility will charge a fee of $1,500.00 to relocate the telephone pedestal. 9. Respondent had no control over the location of the telephone pedestal on the public utility easement. 10. Respondent is found not to have committed any wrongful or fraudulent acts in its dealing with Complainant concerning the optional gate. 11. Respondent is determined not to be responsible for any additional expense to relocate the existing telephone pedestal on the utility easement. 12. The totality of the evidence of record supports a finding that Complainant is liable for any expenses to relocate the telephone pedestal. He knew the location of the telephone pedestal when he ordered the optional gate and when he purchased his boat and trailer. He knew, or should have known, that a portion of the gate would be placed on the public utility easement, where his use of the gate could be influenced by the use of the easement by easement holders.

CONCLUSION OF LAW

1. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) (7), (23) and (3); namely Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed.

Done this day, January 14, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826